The Rental Housing Act controls the relationship between landlords and tenants in the private rental sector. This act protects tenants from landlords for example, if they charge very high rentals for bad accommodation. It also protects landlords from tenants, for example, tenant committees that hold back rent money or try to take over the running of buildings. It provides for mechanisms to resolve disputes, for the establishment of Rental Housing Tribunals and a system for building positive relationships between landlords and tenants. The Act applies to all written or verbal residential lease agreements entered into on or after 1 August 2000.

The Rental Housing Amendment Act (No 43 of 2007) was passed by parliament to address some administrative issues and implementation of the 1999 Act. One of the most important changes is the definition of “unfair practice.” An unfair practice is any act or omission by either a landlord or tenant that goes against the Act.

The Rental Housing Amendment Act (No 35 of 2014) introduced various changes that impact on the relationship between tenants and landlords. These are the key provisions:

• It requires residential lease agreements to be in writing
• It extends the nature of the offences
• It extends the power of the Rental Housing Tribunal
• It adds sections relating to securing deposits, the condition of the dwelling and the overall relationship between landlords and tenants
• It requires the Minister of Human Settlements to set up Housing Tribunals in all provinces.
• It requires municipalities to establish rental housing information offices to provide advice to tenants and landlords. However, there is no requirement for national or provincial government to make the necessary funds available for these offices. 

 WHAT ARE THE RIGHTS OF THE LANDLORD  AND TENANT?

A landlord  has the right to:

• Prompt and regular payment of rental
• Have a security deposit from the tenant which may not be more than what is in the lease, and must be invested in an interest-bearing bank account 
• Deduct from the tenant’s deposit the reasonable cost of repairing damage to the dwelling but must then refund the balance of the deposit and interest to the tenant within 21 days after the lease has expired
• Recover debt after an order of court has been obtained
• Terminate a lease on grounds not deemed unfair and as specified in the lease Agreement
• Upon termination of a lease, receive the property back in a good state and Repossess the property after an order of court has been obtained
• Claim compensation for damages/improvements

A tenant has the right to:

• Not have their person, property or residence searched without a ruling by a court or tribunal
• Receive visitors
• Not have their possessions seized without an order of the court
• Privacy of communication
• Request written receipts from the landlord which must include dates, address or description of the property, for which period payment has been made, whether the receipts are for payment of rental, arrear rental, deposit payment or otherwise
• Request written proof of interest accrued on the deposit paid

WHAT ARE THE DUTIES OF LANDLORDS AND TENANTS?

A landlord has a duty to:

• Ensure that the premises is in a safe and livable condition when rented out, which also means the building is structurally sound and physically safe for the tenant, the tenant’s household members and visitors
• Provide basic maintenance of the premises which includes repairs and upkeep to ensure the dwelling is in a habitable condition
• Provide a lease in writing. The Minister for Human Settlements must provide a pro-forma lease in all 11 official languages
• Allow the tenant to receive visitors
• Place the tenant’s security deposit in a savings account which has the highest rate of interest for that financial institution
• Return the security deposit, plus all interest accrued, to the tenant minus any costs for reasonable repairs for damages caused by the tenant
• Provide proof to the tenant of any costs incurred through having a lease drawn up when passing on such costs to the tenant
• Not unreasonably withhold consent for a tenant to sub-let.
• Arrange a joint inspection of the dwelling at the end of the lease, at a time that is convenient for both parties. This must take place within three days before the lease expires to determine if there was any damage caused to the dwelling during the tenant’s occupation. If the landlord fails to inspect the dwelling in the presence of the tenant, it is regarded as an acknowledgment by the landlord that the dwelling is in good and proper condition and the owner will have no further claim against the tenant. If the tenant fails to respond to the landlord’s request for an inspection, the landlord must, within seven days inspect the dwelling to assess any damages or loss which occurred during the tenancy.

 A tenant has a duty to:

• Pay the rent on time as specified by the lease
• Keep the dwelling/property clean and tidy
• Not use the premises for an improper purpose (for example, overcrowding, illegal activities and unregistered retail)
• At the end of the lease, return the property to the landlord in the same condition minus reasonable wear and tear
• Keep to the provisions of the lease as long as all the provisions are legal

RENTAL HOUSING TRIBUNALS

The Rental Housing Act provides for the establishment of Rental Housing Tribunals in all the provinces. The Act gives the tribunals the power to make rulings that are the same as the ruling of a magistrate’s court. A tribunal can, for example, order a landlord to reduce the rent if a building is not being maintained properly. The service they provide is free.

The provincial Rental Housing Tribunals are required to resolve disputes between tenants and landlords in residential dwellings. These include privately owned houses, hostel rooms, informal dwellings, rooms, outbuildings, garages or similar structures that landlords may lease to tenants to live in. 

 The Unfair Practices Regulations prescribe what the rights and obligations are of landlords and tenants. These deal with: 

• Changing of locks
• Deposits
• Damage to property
• Demolitions and conversions
• Eviction
• Forced entry and obstruction of entry
• House rules
• Intimidation
• Issuing of receipts
• Tenants’ committees
• Municipal services
• Nuisances
• Maintenance
• Reconstruction and refurbishments

EXAMPLE

A tribunal can order a landlord to reduce the rent if a building is not being maintained properly. 

OTHER TRIBUNAL POWERS

Spoliation orders: This prevents a landlord or tenant from taking the law into their own hands by seizing goods. A spoliation order restores the property to the owner while waiting for a full hearing on the matter.

Interdicts: These are orders that would prevent a landlord or tenant from continuing with a certain action or require either party to undertake a particular action. The complaining party alleges that such an action, or the lack of an action, is an Unfair Practice.

 Attachment orders: A landlord would usually try to get an attachment order for the tenant’s property once the Tribunal has determined that back rent owing to the landlord has not been paid and following an interdiction against the tenant.

Spoliation orders would generally be sought by the tenant against the landlord. Interdicts, however, are likely to be sought by either a landlord or tenant in various situations where one party is alleging that the other is committing an unfair practice. Attachment orders would usually be sought by a landlord against a tenant.
EXAMPLES

Spoliation order: A landlord claims that a tenant owes him back-rent and removes a fridge that the tenant needs (which came with the house as part of the lease). The tenant can lodge a complaint with the Tribunal which can now make a Spoliation order forcing the landlord to return the fridge.

Interdict (a): A tenant allows rubbish to gather around the property and does not respond to requests to remove it. The landlord can apply for an interdiction obliging the tenant to remove the rubbish and to keep the property clean in the future.

Interdict (b): The landlord makes frequent unwelcome visits to the rented house and the tenant feels harassed. The tenant can approach the Tribunal for an interdiction against the landlord obliging them to respect the tenant’s privacy (“quiet enjoyment.”)

MAKING A COMPLAINT TO THE RENTAL HOUSING TRIBUNAL

Referring a complaint to the Rental Housing Tribunal is free. Follow these steps to make a complaint. 

1. Identify the complaint

Check if your complaint is valid. The following list of Tribunal Complaints will help you decide if your complaint qualifies to be submitted to the Rental Housing Tribunal.

• Failure to refund deposit – Your landlord has not returned your deposit after you’ve left the property.
• Unlawful notice to vacate – You received an unlawful notice to vacate from your landlord.
• Exorbitant increase in rental – Your landlord has increased the rent more than usual or by an unaffordably high amount.
• Failure to accept your notice – Your landlord doesn’t accept that you have decided to leave after giving them your notice and wants you to stay and keep paying rent.
• Municipal services not provided – Your landlord has failed to provide municipal services (e.g. water, refuse and sewerage)
• Municipal services not paid for by the landlord – If the tenant has not paid for municipal services, your landlord can make a complaint against you.
• Failure to do maintenance – Your landlord is failing to do proper and required maintenance on your home
• Unlawful eviction or lockout – Your landlord has unlawfully evicted you or changed the locks so you can’t get into the house
• Unilateral changes to agreement – Your landlord has made changes to the lease without your agreement or consent. 
• Unlawful entry – Your landlord comes into your home without proper notice, or when you are not at home.
• Unlawful seizure of possessions – Your landlord takes your things from the property or takes things from the property that belong to them but you have a right to use. 
• Failure to provide payment receipts – Your landlord refuses to provide you with monthly statements or receipts for payment of rental after you have asked for them.
• Failure to provide a copy of the lease – Your landlord refuses to give you a copy of the lease.
• Failure to provide a written lease – If you have a verbal lease your landlord has a duty to turn it into a written lease if you ask them.
• Claim for lowering of rental – If you think your current rental amount is too high and unfair you can ask for it to be reduced.

2. Complete the complaint forms 

Make a complaint using the correct form available at the Rental Housing Tribunal in your province or check if it is available online. Each province has its own specific methods, but in general, these are the steps to follow. 

Submit two forms – the main complaint form as well as an annexure form. Both forms should be available on the provincial RHT websites. Mark the relevant complaints on the tick list and sign the forms. 

 You will also need the following:

• ID / Passport / Permit
• Your contact details (address and phone number)
• Your landlord’s contact details
• Copies of the lease (if there is one)
• Supporting evidence (photos, payment receipts, etc)

 You should have three copies of these documents. Two are for the Tribunal and one is for you to keep (this should be the original).

3. Submit your documents

 Complaint forms and other supporting documents, must be submitted in person to the Rental Housing Tribunal in your province.

When submitting the documents make sure you do the following:

• Make 2 certified copies of all documents (‘certified’ copies have to be signed by a Commissioner of Oaths)
• Submit 2 co[ies of all documents to the Tribunal
• Record the date of submission on the original forms (the copy you keep)
• Record the name of the person who you submitted the documents to on the original forms
• Get written confirmation of your submission from the tribunal (like a letter or a date stamp on the submitted complaint form)
• Keep all original documents in a safe place 

4. The Rental Housing Tribunal records your complaint

A case file will be opened with a reference number to track the complaint. About two weeks after submitting the complaint you and the landlord should receive a letter from the Tribunal saying that the complaint has been received. If you don’t hear from the Tribunal within two weeks, call them to follow up.

5. Tribunal investigates the complaint

The Tribunal will conduct a preliminary investigation to check whether the complaint qualifies as an unfair practice which means it relates to a dispute over which they have authority. An inspector may inspect the property and draw up a report if necessary.

6. Tribunal decides whether an unfair practice exists

After you submit the complaint, the tribunal has 30 days to make a decision whether the complaint qualifies as an unfair practice. If they don’t think the complaint involves an unfair practice, they must send you a letter that gives reasons for their decision. If they think it qualifies as an unfair practice, they must try to resolve the dispute.

7. Resolving your dispute at the tribunal

A case officer is appointed to the case. They will contact you and the landlord. The case officer must first try and resolve the matter by calling you and the landlord to discuss and find a solution. If the matter isn’t resolved then the case officer will decide whether the dispute can be resolved through mediation. If mediation fails then the case moves to a Tribunal Hearing.  

8. Attending mediation

 The mediator will try to get the parties to agree to a solution. If they agree, then the agreement is binding and has the same power as a court order. If there is not agreement, then the next step is to have a hearing.  

9. Attending a Tribunal Hearing

 If mediation fails, then the case officer will provide a hearing date. The hearing will be held at the Tribunal office  in your province. At the hearing each party is asked to share the facts of their case. At least three Tribunal members will be present at the hearing. There is no need to have legal representation. After the hearing, the Tribunal makes a decision which is communicated to the parties a few days after the hearing. The ruling has the same power as a Magistrate’s Court order. If you or the landlord want to challenge the decision, you can refer the case to the High Court to be reviewed. 

10. High Court review

If you or the landlord are not happy with the decision of the Tribunal you can refer the matter to the High Court to be reviewed. You will need a lawyer to do this. (See Problem 8: Common problems in renting a house or flat)

 WHO CAN LODGE A COMPLAINT?

Any tenant or landlord or group of tenants or landlords or interest group can lodge a complaint to the tribunal. 

WHAT HAPPENS IF PARTIES DO NOT FOLLOW THE RULING OF THE TRIBUNAL?

A ruling by the Tribunal is like an order of a magistrate’s court and must be enforced in the same way. People can be fined or sent to prison for up to two years if they:

• Fail to attend a hearing without good cause or refuse to be sworn in
• Refuse to produce any document or object in his or her possession
• Try to deceive the tribunal or make false statements
• Go against (contravene) any regulation or refuse to obey an order of the Tribunal